Lawyers work in mysterious ways. But you can choose a better one if you follow some kind of system. Many people or companies need commercial litigation lawyers only once or twice in their lifetimes and usually when the stakes are high. When things go wrong in business or professional relationships, losses and risks can quickly go out of control. Good commercial litigators guide their clients through difficult disputes. And their number one purpose is to resolve the problem for good, so the client can focus on their life or business. Litigators take most of the burden of managing the dispute off their clients’ shoulders, but eventually all clients want to close the file while still ahead. Choose a commercial litigator who makes this goal a guiding philosophy of their practice.
To choose a commercial litigator, you will need to gather some information. There are some open sources, which you should always consult:
- The lawyer regulatory authority. They may publish a directory of all lawyers in the jurisdiction, which should include any discipline history and the lawyer’s current licence status. Check it. In Ontario, where I practice, the Law Society of Upper Canada does this.
- Court records. There are a few free and public databases of court decisions. Run your lawyer’s name through them. If it’s a litigation lawyer, the name should come up in at least one case. Remember that good lawyers often settle before going to court, and many decisions are never published. Don’t expect a long list of cases when you search for your lawyer. Also read what the judge said about the lawyer or his work in the decision. If a lawyer “lost,” it doesn’t mean the lawyer is bad. The best lawyers still lose cases. What you want to look for is any criticism of the lawyer’s ethics, diligence, or competence, not whether the lawyer lost or won the case. In Canada, CanLII is a great, free database of court decisions. In the US, try Legal Information Institute at Cornell University Law School.
- Other lawyers. Lawyers tend to know about other lawyers, and some lawyers can be notorious in the legal community. Run potential commercial litigators by your real estate, tax, or business lawyer. What you will learn can surprise you.
- LinkedIn. See if anyone recommended your potential litigator on LinkedIn. People use their real names and disclose their professional bio and network there so their reputation is at stake. See if respectable professionals or businesspeople recommended your lawyer for actual projects.
There are some signs you can watch for when choosing a litigation lawyer. Contrary to what many believe, the number of years of experience is not the most important factor. For example, a lawyer fresh out law school can be quite appropriate for small claims files or as a second-in-command on a larger file. A lawyer with 50 years of experience can be a disaster. As long as other things are in order, a lawyer with five or more years of litigation experience should be able to handle most disputes for a professional or a small business (let’s say with annual sales under $10 million) quite well. Also, there is an unfortunate habit in the legal profession to increase fees with seniority. If you are choosing between a lawyer with 15 years of experience and 5 years of experience, the difference in quality could be zero but the difference in fees could be two- or three-fold. Compare rates more than years of experience.
The litigator says yes to everything you say. A good litigator will use his or her expert knowledge to help the client set the right expectations and plan accordingly. A lawyer who promises to do everything you ask, may be interested in making a sale more than in protecting your best interests. Another form of this problem is when the lawyer offers clearly unethical solutions to your problems. Run.
The litigator is dirt cheap. Beware of lawyers who quote $300 for a motion or $1,500 for a small claims matter. Perhaps they are perfectly legit and pass on some amazing efficiencies to their clients (especially in routine cases where opposition from the other side is unlikely). Or maybe you are their pro bono file. But I would guess that one of the leading causes of lawyers dropping out of cases is under-quoting. Litigation, and especially high-stakes litigation, is rarely cheap.
No written retainer. Put at least the description of the work, the hourly rate and any capped or flat fee arrangements in writing. In some jurisdictions, contingency fees (“no win-no pay”) must be in writing or it’s professional misconduct. Ideally, the agreement or some kind of written policy also explains the lawyer’s practices such as billing, trust accounting, communication and so on.
The litigator says he is aggressive. It’s actually professional misconduct in Ontario to say that. Also, expect to pay a lot more for “aggressive” tactics without any better outcome necessarily. Often, judges will hit back at aggressive lawyers with a range of punitive tools. Clients end up picking up the tab.
The lawyer cannot give you any idea of the total cost. Most lawyers in most cases can help clients budget their legal spend. It does not even have to mean a binding quote but some idea of the total or stage cost is a must. Try to negotiate a binding quote but expect the lawyer to include a risk premium. Time to lawyers is like gas to cab drivers.
- The lawyer does not display any of the bad signs above. You need about 15 minutes on the phone with a lawyer to check these things off. If a lawyer agrees to a free 15-minute call to talk about his work, it is a good sign too.
- The lawyer has an easy-to-understand litigation philosophy. It will guide the lawyer’s work and make results more predictable. For example, the ICE method (investigation-customization-efficiency) is a litigation philosophy. Let me know if you have any questions about it.
- The lawyer does only a limited number of files a year. And he or she can tell you what the approximate number is. Besides competence—focus and capacity are two most important success factors for a litigation lawyer. You can’t have focus and capacity, if you are not a “happy lawyer.”
- The lawyer is coherent on the phone. If a lawyer did not make at least one thing that previously puzzled you crystal clear in a 15-minute phone call, it’s a bad sign. The reverse is a good sign.
- The lawyer understands that he or she will be your protector and guardian and nothing less. Lawyers are not simply service providers. They are trusted and expert agents that manage a high-stakes dispute in a complex environment. It’s a jungle where you would fail on day one. That’s why you are paying a lawyer.
Think about this. A relationship with a lawyer is not very different from marriage. Except there are no kids and romance (hopefully). It’s a commitment, and especially so in a commercial dispute. You will work closely with a commercial litigator on issues that can mean the difference between prosperity and failure of you or your company. Nowadays, you can choose a great litigator without even an in-person meeting thanks to modern technology (and protect youself from high-pressure sales tactics). But at least use a systematic approach in choosing a litigator. Some elements of such approach are in this essay. It’s not a comprehensive manual but it’s a good starting point. If you were to take away only one thing from here, it is talking to a lawyer you already trust about choosing a litigator.